Citation Nr: 21069116 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-27 510 DATE: November 17, 2021 ORDER A partial vacatur of the Board of Veterans' Appeals (Board) decision, dated February 9, 2021, is vacated, to the extent that it denied the Veteran's claim of entitlement to service connection for degenerative arthritis of the lumbar spine (previously claimed as a back disability). FINDING OF FACT On April 27, 2021, the Board received a request for Reconsideration/Vacatur of the Board's February 9, 2021, decision, to the extent that it denied the Veteran's claim for service connection for degenerative arthritis of the lumbar spine (previously claimed as a back disability). CONCLUSION OF LAW The criteria to partially vacate the Board's June 3, 2020, decision have been met. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Army from April 1965 to April 1968, July 1968 to July 1974, and November 1990 to April 1991, and additional periods of service with the United States Army National Guard, Air National Guard, and Army Reserves. The record shows that this matter was previously remanded on multiple occasions, to include most recently in April 2020. Pursuant to that decision, the agency of original jurisdiction (AOJ) was directed to schedule the Veteran for new VA examinations. The requested development was subsequently completed, and the Board issued a Decision on three issues on February 9, 2021. PARTIAL VACATUR OF THE FEBRUARY 2021 BOARD DECISION On February 4, 2021, the Veteran's counsel submitted a Francway request, which challenged the qualifications of the October 2020 VA examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed.Cir.2019). Regrettably, the request had not been uploaded to the claim's file until February 9, 2021. On the same date, the Board's decision was forwarded to the Veteran. Three months later, in May 2021, counsel submitted a Motion for Reconsideration suggesting that the Board's decision should be vacated to the extent that it denied the Veteran's claim for service connection for a lumbar spine disability. The correspondence also the noted the outstanding challenge to the competency of the VA examiner, under Francway. A copy of the examiner's curriculum vitae was also requested. Generally, the Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.904. As the Board had not yet reviewed or responded to the Veteran's Francway request, its February 2021 decision was premature. Thus, a Partial Vacatur of the February 2021 Board decision is granted; to the extent that it denied the Veteran's claim for service connection for degenerative arthritis of the lumbar spine (previously claimed as a back disability). See 38 C.F.R. § 20.1000 (a). As to the revived issue, it is remand as necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159 (c) (2020). REMANDED Entitlement to service connection for degenerative arthritis of the lumbar spine (previously claimed as a back disability) is remanded. REASONS FOR REMAND In a February 2021 correspondence, the Veteran's representative challenged the competency of the VA examiner who provided October 2020 etiology opinion. A copy of the examiner's curriculum vitae was requested. Three months later, counsel filed a Motion for Reconsideration/Motion to Vacate, dated May 2021, which noted VA's failure to respond to the competency challenge. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a panel decision in Francway v. Wilkie, affirming the decision of the United States Court of Appeals for Veterans Claims (Court) which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. Id. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. Furthermore, the Federal Circuit has observed that the question of whether an examiner is competent and whether he or she has rendered an adequate examination are two separate inquiries. Francway, 940 F.3d at 1309. As noted above, VA has yet to respond to the Veteran's request for the October 2020 VA examiner's credentials. "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway, 940 F.3d at 1308 (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)). Considering the outstanding Francway request and that it predated the Board's February 2021 decision, that decision was issued prematurely. Accordingly, on remand VA must respond to the representative's competency challenge, to the extent possible and as allowed by law. See Francway, 940 F.3d at 1308. The matters are REMANDED for the following action: 1. Contact the examiner who provided the October 2020 VA etiological opinion and request a curriculum vitae. 2. Upon receipt, the information should be forwarded to the Veteran. 3. Thereafter, re-adjudicate the Appellant's claim. If any claim remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.